Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora
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IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,
JORHAT
Present: Jinti Panging, AJS
Judicial Magistrate First Class, Jorhat
Misc. Case No. 35/2018
u/s 125 Cr.P.C
Pranami Bora …………………………………. 1st party
Versus
Raju Kumar Bora ……………………………. 2nd party/Opposite
Party
Advocates:
For the 1st party: Sri SudiptaNayanGoswami, Sri D. D. Neog, Sri
K. M. Goswami, Smti. LakhimiGogoi
For the 2nd party: Sri Ranjan Dutta, Smti. DeepsikhaGayan, Sri
RupjyotiGogoi
Evidence recorded on: 28.05.2018, 15.06.2018, 07.07.2018,
24.07.2018, 30.08.2018, 09.10.2018, 29.10.2018
Argument heard on: 06.12.2018
Judgment delivered on: 19.12.2018
Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora
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FINAL ORDER
1. The case of the petitioner, Smti. Pranami Bora (hereinafter
referred to as the 1st party), in brief, is that she got married to
Sri Raju Kumar Bora (hereinafter referred to as the 2nd party)
on 21.04.2007 as per Hindu rites and rituals at Jorhat and after
solemnization of their marriage, both parties have lived
together as husband and wife at the residence of the 2nd party.
That after six months of the marriage, the 2nd party began to
rebuke the 1st party with filthy language and inflicted mental
torture upon the 1st party. That the 2nd party was never
respectful towards the wedlock with the 1st party. That even
during the pregnancy of the 1st party, the 2nd party physically
assaulted her apart from subjecting her to mental torture. That
the 1st party suffered a severe emotional breakdown during her
pregnancy. That days passed in this way and bearing all the
tortures, the first party gave birth to a baby boy. That after 4
days of her delivery, the 1st party was released from the
Hospital with stitches as she had to undergo a surgery for
giving birth to her baby. That on the 6th day of her delivery,
while the 1st party was residing at her paternal house, the 2nd
party quarreled with her for a silly reason and the 2nd party
kicked on the abdominal part of the 1st party for which the 1st
party sustained wound injury and she was taken to A.G.
Nursing Home for undergoing stitches on her wound. That the
things went complicated since after their marriage but the 1st
party kept on tolerating all such inhuman tortures and
behaviour for a long time and concealed these secrets from her
parents. That the 2nd party is a habitual drunkard and a
habitual gambler and never respected the honour and dignity
of the 1st party. That the 1st party being the married wife of the
2nd party patiently tolerated all such inhuman tortures of the 2nd
Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora
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party with a hope that the good sense would prevail one day
and she would be able to lead a happy conjugal life but all her
hopes and aspirations were frustrated when the cruel behaviour
of the 2nd party increased bit by bit. That the tortures and
abuse of the 2nd party are so extreme and unbearable that the
1st party had to go to the police station one day for protection
and safety. That the 2nd party slapped the 1st party several
times and also assaulted her with a chair on that day. That the
1st party was again subjected to mental and physical cruelty
apart from being deprived of her rights as a married woman
and was compelled to leave her matrimonial home on
31.03.2017. Thereafter, the 1st party resorted to judicial
redressal and a Misc. Case was filed for maintenance of herself
and her son but the 2nd party proposed to take the 1st party
back with a promise to resume conjugal life again. That the 1st
party also accepted the proposal as she was sincerely desirous
to lead a happy conjugal life but after few days of her return to
her matrimonial house, the 2nd party inflicted physical torture
upon her again on 18.11.2017 but the 1st party tolerated such
behaviour on that day. But again on 17.12.2017, the 2nd party
slapped the 1st party without any reason, beat her mercilessly
compelling her to leave her matrimonial house again and since
then, the 2nd party never came to take her back to her
matrimonial home till date. That the 1st party is taking shelter
with her parents, who are also not physically sound and as
such, the 1st party is being compelled to file a case against the
2nd party. That the 1st party has no source of income. That the
2nd party has neither taken any steps to bring his wife and son
back nor paid any maintenance amount to both the 1st party
and her son and for which the 1st party is suffering from a
severe financial hardship. That the son of the 1st party is a
student of Carmel School, Jorhat and is doing well in his studies
and extra-curricular activities. That the 1st party is also
prevented from visiting her matrimonial home. That the 2nd
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party is leading a happy affluent life with abundant wealth and
income amounting to Rs.35,000/-(Rupees thirty five thousand)
only per month. That the 2nd party is also earning his income
from Agriculture apart from having a job. Hence, the 1st party
prayed to direct the 2nd party to pay a monthly maintenance
allowance of Rs. 15000/- (Rupees fifteen thousand) only per
month towards her and her son.
2. After filing of the petition, summon was issued to the 2nd
party. That the 2nd party duly received notice from this Court
and entered his appearance and has filed his written statement
against the 1st party. The 2nd party has stated that the petition
filed by the 1st party is not maintainable in law as well as on
facts and the allegations sought to be raised by the 1st party
through her petition does not fulfill the requirement of section
125 Cr.P.C. and as such the petition is liable to be dismissed in
limine. That the 2nd party is not admitting any of the averment
of the petition beyond what are specifically stated therein and
the matters which are strictly in conformity with the records.
That the 2nd party admitted that he entered into wedlock with
the 1st party on 21.04.2007 as per Hindu rites and rituals at
Jorhat and after solemnization of their marriage, both parties
have lived together as husband and wife at the residence of the
2nd party. That the allegations as made in the petition from para
4 to para 13 are stoutly denied by the 2nd party. That the 2nd
party asserts he is a respectable person in the society and has
no such records of such habitual gambling or drinking. That the
2nd party asserts the 1st party has inflicted physical and mental
torture upon the 2nd party. That the 2nd party asserts the 1st
party tried to beat his aged mother but the 2nd party kept quiet
because he did not want a bad name for his wife in the society.
That the 2nd party asserts on the knowing about the 1st party,
he questioned her in an angry tone and the 1st party being
afraid of the 2nd party of being beaten up filed a complaint in
Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora
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the police station. That the 2nd party asserts the 1st party left
her matrimonial home on 31.03.2017 on her own will and took
their son along with her and filed a Misc. Case for maintenance.
That the 2nd party went to her parents’ home and asked the 1st
party to come back to his house and to leave the other person
and the 1st party accepted his proposal to resume the conjugal
life. That after some days, the 1st party again started her extra-
marital relationship with that other person and one day on
17.12.2017, she again left his house and went to her parental
house. That the 2nd party on various occasions went to the
parental house of the 1st party to bring her and their son back
home but the 1st party refused to talk to him and did not allow
him to enter inside their house and the 1st party refused to
break her relationship with that other person and to resume the
conjugal life. That the 2nd party asserts that their son is
studying in Christ King School and not in Carmel School. That
the 2nd party asserts that the 1st party is welcomed in her
matrimonial home any time but the 1st party refused to return
and also does not allow him to talk to his son. That the 2nd
party works in a Private Sector Company and he does not earn
Rs.35,000/- per month and he also have to look after his old
aged mother and father. That the demands of the 1st party is
very high and she wants to lead a very luxurious life but the 2nd
party is unable to fulfill all her desires and therefore, on
17.12.2017, she again left her matrimonial home and went to
her parents’ house and maintained an illegal relationship with
some other person. Hence, the 2nd party prayed to dismiss the
petition filed by the Petitioner/1st Party.
3. To prove her case, the 1st party adduced the evidence of
herself and two other witnesses. The 2nd party adduced the
evidence of two witnesses in his defence. I have gone through
the case record and heard the argument advanced by the
learned Counsels of both the parties.
Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora
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Points for Determination
i) Whether the 1st party is the legally married wife of the 2nd
party?
ii) Whether the 2nd party having sufficient means to maintain the
1st party and her child refused or neglected to maintain the 1st
party and her child?
iii) Whether the 1st party has sufficient ground for deserting the
2nd party and living separately from the 2nd party and whether
the 1st party and her child are entitled to get maintenance from
the 2nd party?
Discussion, Decision and Reasons thereof
Point No. (i)
4. PW1, the 1st party Smti.Pranami Bora stated in her evidence that
the 2nd party is her husband. She further stated that she
entered into wedlock with the 2nd party on 21.04.2007
according to Hindu rites and customs. She also stated that the
on 05.08.2008 a male child was born to her out of their
wedlock.
5. DW1, the 2nd party in his evidence stated that he entered into
wedlock with the 1st party on 21.04.2007 according to social
customs and traditions and on 05.08.2008 a male child was born
to them out of their wedlock.
Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora
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6. In the light of the above evidence, it is an admitted fact that the
1st party is the legally wedded wife of the 2nd party and both are
parents of a girl child born out of the wedlock.
7. Hence, this point no. (i) is decided in affirmative, in favour of
the 1st party.
Point No. (ii) and (iii):
8. The 1st party stated in her evidence thatin her evidence that the
second party used to physically torture her under the influence
of alcohol. She also stated that after five days of her delivery,
the second party assaulted her and as her stitches were fresh,
she become unconscious and she was taken to AG Nursing
home for treatment. And thereafter, the torture upon her by the
second party increased gradually. She also stated that she took
a loan of Rs. 1,00,000/- ( Rupees one lac) from
KanaklataMahila Urban Bank for the second party. And
accordingly the second party bought a Maximo Mini Van but the
second party sold the vehicle latter and as he could not repay
the loan again she took a loan of Rs. 40,000/- (Rupees Forty
thousand) from Bandhan Bank for the second party. She also
stated that on one occasion, police arrested the second party
from a leaker shop and he was later released on bail. She also
stated that on various occasions, she and her father-in-law
used to go to those leaker shops to bring the second party back
home. She also stated that in the year, 2016, in the month of
April on one occasion while she was having her food, the
second party threw a pressure cooker towards her and
thereafter, he assaulted her with his belt by taking her inside
the room. And thereafter, again he dragged her outside from
room and strangulated her with a water pipe and when her
Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora
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mother-in-law came to rescue her, the second party poured hot
water over her body. She also stated that on 31.03.2017, she
was late on reaching home from her tuition classes and on
reaching home, the second party slapped her and also
assaulted her with a dining chair and thereafter on the same
night she went to Nimati O.P. and lodged an ejahar. She stated
that police went and brought her child from the house of the
second party and gave his zimma and on the next day, in
presence of the villagers and police personnel both entered into
an agreement and thereafter, she returned back to her parental
house. She stated that after one year, she received a notice
from the second party in relation to a divorce case filed against
her for which she had to file a maintenance case against the
second party but second party entered into a compromise with
her for which she withdraws the case. She stated that
thereafter, the second party took her to a rented house and
they resided there till 18.12.2017. She further stated that on
18.12.2017 the second party assaulted her very badly for which
she had to return from the rented house to her parental home
on 19.12.2017 and since then she and her child are residing in
her parental house. She also stated that the second party had
not paid any maintenance towards her and her child and has
neither approach to take them back home. She also stated that
her mother is repaying the loan taken by her for the second
party. She also stated that the second party is parts supervisor
at Honda showroom, Jorhatand she has no income of her own.
9. PW2, BharatiSaikia Bora in her evidence stated that first party is
her daughter and the second party is her son-in-law. She stated
that at present the first party is staying with her. She also
stated that the second party used to torture her under the
influence of alcohol. She stated that they had lodged a case
against the second party. She also stated that as the second
party used to torture her, she brought the first party back
home. She also stated that the second party has not paid any
Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora
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maintenance to the first party and her child. She also stated
that the second party is working at the Honda Dealer. She also
stated that the second party has not approached the first party
to take her daughter and her child to his home.
10. PW3, PranobSaikia in his evidence stated that the first party is
his niece. He also stated that the second party used to torture
the first party for negligible reasons. He also stated that the
first party had also filed a case against the second party. But all
entered in to a compromise, the first party withdraw the case.
He also stated that thereafter, again both the parties started to
reside together at a rented house but after three months, the
second party again started to assault the first party for which
the first party had to return back to her parental house and
since then she and her child have been residing in her parental
house. He also stated that the second party had not paid any
maintenance to the first party and to her child. He also stated
that the second party is working at Honda Dealer and first
party had no income of her own.
11. DW1, Raju Kr. Bora in his evidence stated that while he was
working at J.B. Honda showroom, caught fire to which he was
jobless and so the first party arranged a loan from
KanaklataMahila Urban Bank out of which amount he bought a
Maximo Mini Van. He also stated that after sometime, he sold
the vehicle. He also stated that thereafter. He joined a job at
glory Honda. He also stated that the first party had earlier
lodged a case in the NimatiOut Post and thereafter they
entered into an agreement at P.S. that he would pay the loan
amount of the Bandhan Bank taken by the first party and also
he would bear the expenses of the studies of their child. He
also stated that on 31.03.2016 at about 9 P.M, when he
reached home, the first party was not present as she was
taking tuition classes for which he called her over phone and
questioned her about the reason for being late. He also stated
Misc. Case No. 35/2018 Pranami Bora vs Raju Kumar Bora
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that the first party has an illicit relationship with a person
whom she called her brother since the year 2016. He also
stated that he had check the phone of the first party and saw
some messages exchanged between the first party and the
person. He stated that the first party again lodged a case in
Jorhat P.S., but it was withdrawn later. He further stated that
from 20.09.2017 he along with the first party started to reside
at a rented house but again he got a recording from the phone
of the first party where he heard a conversation between the
first party and the person with whom she has an affair. He also
stated that on 19.12.2017 while he was shopping for a function
which was going to be held at school of his son, the first party
called him and told him that she is going to her parental house
and since then they are staying separately.
During cross-examination, he stated that the first party
and her son are presently staying at the parental house of the
first party. He also stated that the first party has not
approached him for receiving any money from him and he has
not approached the first party for giving any maintenance to
her and her child. He also stated that the person with whom
the first party is maintaining an illicit relationship is known to
them and his parents have visited his house. He also stated
that he is not aware if the first party had admitted at Nimati
O.P. He also stated that he is not aware if the first party was
admitted at City Orthopedic hospital and Research Centre. He
also stated that the first party used to share a good relation
with his mother. He also stated that on 01.04.2016, he had put
his signature on the compromise agreement where it is also
stated that he used to torture the first party. He also stated
that he has never tried to bring the first party back home. He
also stated that he had heard that his son is at present
studying at Christ King High school but he is not well aware of
it. He also stated that he is not aware about the transportation
of his child from school. He also stated that he has not
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submitted any SMS (messages) and recording to the police. He
also stated that he has not paid any maintenance towards the
first party and his son.
12. DW2, Smti. Ranjima Borah in her evidence stated that the 1st
party is her daughter-in-law and the second party is her son.
She further stated that the marriage between them went well
till 2016. She also stated that from 2012, the first party
developed a brother-sister relationship with a boy and she
invited that person to their home. She also stated that she and
her husband had visited the house of thatpersonnamely
AnantaKakoty at Lakhimpur. She also stated that on one
occasion, the person namely AnantaKakoty came to stay over
their house. She stated that on the next day morning her son
i.e., second party told her that he had seen the first party and
AnantaKakoty together in the bathroom. She also stated that
on 31.03.2016 the first party came late home and on being
questioned by the second party, she become furious and
pushed her and went out of the house through back door.
Thereafter, she lodged a case at the Nimati O.P. alleging that
the second party had assaulted her and from the P.S., the
mother of the first party took her back home and since then
she has been residing in her parental house. She further stated
that after this incident, again both the parties started to reside
together at a rented house and after residing for three months,
the first party left the rented house and went back to her
parental house. She also stated that the second party is paying
maintenance to her son.
13. During cross-examination, she stated that she had not seen the
incident when the first party was found together with
AnantaKakoty inside the bathroom. She also stated that the
second party is a service man. She also stated that she had not
questioned AnantaKakoty about his illicit relationship with the
first party though she knows him well. She also stated that she
had not entered into any quarrel with the first party. She also
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stated that on 27.03.2017 she performed a Bihu Dance with the
first party at a function. She also stated that she is not aware
as to what happened between the first party and second party
between the time-period from 27.03.2017 to 31.03.2017. She
also stated that the first party had lodged a case against the
second party alleging that the second party is to torture her.
She also stated that she and her husband had not approached
the first party to bring her back home.
14. In the instant case, the 1st party asserted that the 2nd party
used to torture the 1st party which also finds corroboration from
the evidence of PW2 and PW3. The 1st party also stated that on
31.03.2017, the 1st party lodged a case against the 2nd party for
assaulting her and this piece of evidence finds corroboration
from the evidence of PW2. Moreover, DW1 and DW2 specifically
admitted that the 1st party had lodged a case against the 2nd
party and the 1st party later withdrew the case as the 2nd party
entered into a compromise with the 1st party. The 1st party also
stated that since the day she returned to her house, the 1st
party has been residing in her maternal house along with her
son, which also finds corroboration from the evidence of PW2
and PW3. DW1 and DW2 also admitted the said fact. The 1st
party also stated that since the day she left the 2nd party, the
2nd party has not approached her and has not taken care of her
well-being and also has not paid any maintenance towards the
1st party and her child, which also finds corroboration from the
evidence of PW2 and PW3.Moreover, the 2nd party specifically
admitted that he has not provided any maintenance to the 1st
party and her child. The defence witnesses could not state
anything contrary to the statements of the 1st party. Defence
side could not shake or demolish the evidence of the 1st party.
The defence side failed to negate the statements of the 1st
party and her witnesses. The 2nd party and DW2 stated that the
1st party has an illicit affair with a person namely AnantaKakoty
but the said person was not examined by the defence side, as
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he was the relevant witness who could give a glimpse of the
allegation. Moreover, DW2 specifically stated that the 1st party
has not entered into any quarrel with her. Moreover, the 2nd
party has admitted that the 1st party used to share a good
relation with the mother of the 2nd party. DW2 has stated that
the 2nd party has told her that he had seen the 1st party and
the person namely AnantaKakoty together in the bathroom but
the 2nd party has failed to state about it. Moreover, the 2nd party
has not produced any such evidence to prove the allegation
against the 1st party. Moreover, the 2nd party could not state
anything against the behaviour and nature of the 1st party,
which depicts that the 1st party was trying hard to maintain her
conjugal life with the 2nd party. Moreover, from the evidence
adduced by DW1 and DW2, it is evident that an incident took
place on 31.03.2016, which also gives a picture of the alleged
incident by the 1st party.Hence, it is clear that the 2nd party
used to torture the 1st party and has not paid any maintenance
towards the 1st party and her child.
15. Also, in the light of the above discussion, it is clear that the
2nd party has a monthly income and he has the capacity to
maintain his wife and her child. On the other hand, it is not a
disputed fact that the 2nd party is an able-bodied person and he
has income to maintain himself and his child. In the case in
hand, the 1st party asserted that the 2nd party neglected her to
maintain her being a married wife and the 2nd party could not
state that he has provided any maintenance to his wife.
Moreover, the 2nd party specifically stated that he has not tried
to bring the 1st party back home.He also could not produce any
cogent evidence to show that he used to maintain the 1st party
and her child. As it has been established earlier that the 1st
party is a legal wife of the 2nd party, so the 2nd party is legally
bound to maintain his wife and her child but he failed and all
these acts of the 2nd party amounts to neglect and refusal on
his part in maintaining the 1st party.
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15. The acts and conducts of the 2nd party as discussed above
clearly depicts that he has neglected and refused to maintain
the 1st party and her child and pushed her into a life of
uncertainty. The Hon’ble Supreme Court has dictated in the
case of BimalaKumari vs. Veruswami, (1991) 2 SCC 375,
that the object of the provision of the section 125 Cr.P.C. is to
prevent vagrancy of destitute women so that they may not
become victim of the circumstances. In the instant case, the 1st
party stated that she has no source of income on her own,
which was not denied by the 2nd party and the witness of the
2nd party. In BhagwanDutt vs. Kamala Devi (1975) 2 SCC
386, it was observed that the wife should be in a position to
maintain a standard of living which is neither luxurious nor
penurious because “unable to maintain herself” does not mean
that wife must be absolutely destitute before she can apply
under the section.
16. As regards the income of the 2nd party, it is clear from the
evidence of the defence witnesses that he has a monthly
income. Moreover, DW1 has stated that he works at Glory
Honda. So, I am of the view that he is capable of giving
maintenance to the 1st party and her child because it is not the
case of the 2nd party that he is incapable of earning nor it is his
case that he is incapacitated to earn because of his physical
disability, etc. According to section 125 (4) Cr.P.C, “no wife
shall be entitled to receive maintenance allowance from
her husband under this section if, without any sufficient
reason, she refuses to live with her husband………”. But
in the instant case in hand, the 1st party has sufficient reason to
desert her husband.
17. In view of the above discussions and the reasons stated, I
am of the opinion that the petitioner and her child are entitled
to get maintenance from the opposite party. In these facts and
circumstances, Point No. (ii) & (iii) are decided in favour of the
1st party.
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ORDER
18. In the result, the petition filed by the petitioner is allowed on
contest.
The petitioner and her child are entitled to get
maintenance from the opposite party.
Considering all aspects and in particular, the status,
social background, cost of living and high index of essential
commodities and capabilities of the other side, the opposite
party is hereby directed to pay Rupees 6000/-(Six thousand)
only per month towards the 1st party and her child of the 1st
party as maintenance allowance from the date of this order.
Let the copy of the judgment be furnished to the
petitioner free of cost.
Given under my hand and seal of this Court on this the 19th day
of December, 2018 at Jorhat.
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Jinti Panging
Judicial Magistrate First Class
Jorhat
APPENDIX
A. List of witnesses for the 1st party :
1. PW1 ………………. Pranami Bora
2. PW2 ………………. BharatiSaikia
3. PW3 ………………. PranobSaikia
B. List of witnesses for the 2ndparty :
1. DW1................... Raju Kr. Borah
2. DW2................... Ranjima Borah
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Jinti Panging
Judicial Magistrate First Class
Jorhat
19.12.2018: Both the parties are present.
Today the matter was fixed for final order.
The petition filed U/S 125 Cr.P.C by the 1st party is allowed.
The 2nd party is directed to pay a maintenance allowance of
Rs.6000/-(Rupees six thousand) only per month towards the 1st
party and her child from the date of the order.
Let a free copy of the judgment be provided free of cost to the
1st party.
Accordingly, the case is disposed of on contest.